44 Fla. 610 | Fla. | 1902
Mr. Justice Carter being disqualified took no part in-the decision of this cause. The Chief-Justice and Mr. Justice Mabry referred the case to Commissioner Hocker for examination, who reports in favor of reversing the-judgment. After due consideration the court is of the opinion tha-t the judgment should be reversed for reasons: stated in the following -opinion.
The petition filed in this case was under section 1542, Revised Statutes, providing that “in all cases where assessments are made against any person, body politic or corporate, and payment of the same shall be refused upon-allegation of -the illegality of such assessment, such person, body corporate or politic, may apply to the judge of the Circuit Court by petition setting forth the alleged illegality, and present the ¿ame together with -the evidence to sustain it, and.the judge shall decide upon the same, and if found to be illegal shall declare the assessment not lawfully made.”
It was held in Shear v. County Commissioners of Columbia County, 14 Fla. 146, that the statute giving a remedy for an illegal assessment embraces those assessments only in which there is error in matters of law, and that the judgment of the county commissioners upon a complaint for the abatement of a tax is a judicial act in which the exercise of their discretion in fixing values can not be revised by any other tribunal. It is in the opinion, “illegal assessments—that is, assessments wherein, independent *of the exercise of a discretion as to value, there appears error in matter of law, are the assessments for which a party has a remedy by petition” under the, statute. Under this ruling it was again announced in City of Tampa v. Mugge, 40 Fla. 326, 24 South. Rep. 489, that the remedy provided by the statute does not extend to the correction
The ground of illegality alleged in the petition before us, in substance, is that petitioner’s real estate, consist-, ing of unimproved pine lands, was assessed by the assessor at three dollars per acre, which was much more than their real value, and that they were assessed in pursuance of a prearranged plan on the part of the assessor that in asesssing lands in the county of the character mentioned, which comprised a large part of the area of the county, he placed thereon an uniform valuation of one dollar per .acre, if given in for taxation by the owner, and when not .given in by the owner, the same were uniformly assessed at a greater valuation, usually at three dollars per acre, and that the assessment was made without regard to the true value of the lands or any of them, but exclusively upon the action of the owner in giving in, or failing to give in, his property for assessment; and it is alleged that said assessment was unjust, unequal,, without uniformity, fraudulent, illegal and void. It is not alleged that the assessor adopted the plan or assessed petitioner’s lands with a fraudulent intent, but his plan or mode of procedure is stated, and it is alleged to be fraudulent. We have no doubt that the method of assessment, as shown by the petition, is unauthorized and could not be sustained before the proper forum as a legal assessment under the statutes. It proceeded upon an entirely erroneous principle for the ascertainment of value, and in disregard of the directions of the statute. Its illegality,
The first ground of the demurrer should have been sustained by the court, and it was error to refuse to do so.
The judgment will be reversed with directions to sustain the demurrer to the petition, and for such further proceedings as may be consonant to law, and it is so ordered.